from the of-course-not dept

The Obama White House has been a big supporter of getting companies to come up with what they like to call "voluntary agreements" for various issues where both the White House and Congress know that there just isn't enough political will in Congress to pass a law. Not that Congress is particularly good at legislating, but sometimes these "voluntary agreements" don't appear to be all that voluntary, and at other times they appear to border on being collusion against certain competitors and innovators. This focus on "voluntary agreements" has been a big part of the administration's approach to dealing with copyright law. That was true prior to the SOPA debacle, but even more so since that legislative effort fell flat on its face. The most high profile of these was the six strikes "voluntary agreement" between certain major ISPs along with the RIAA and MPAA.

Of course, a Freedom of Information Act (FOIA) request from Chris Soghoian showed that rather than a truly "voluntary" agreement, the White House, in the form of then IP czar Victoria Espinel, was heavily involved in the process. However, the Office of Management and Budget (OMB) (where the IP czar position is housed) withheld most of those emails. Soghoian sued and lost, as the court ruled that OMB was okay to hide the documents claiming either that they contained confidential commercial information or that it was part of the "deliberative process privilege."

It appears that the IP czar and OBM are going to get away with this again. A professor from the University of Iowa School of Law, submitted a similar FOIA request for details of the IP Czar's involvement in the creation of a similar voluntary agreement with payment processors -- an effort to get Visa, Mastercard, Paypal, American Express and others to stop doing business with sites deemed evil by the MPAA and RIAA. In this case, OMB is admitting that it has found 60 pages of relevant information but is withholding all of it for the same reasons given to Soghoian. Specifically:

We are withholding the 4-page final agreement under FOIA exemption 4... which protects from disclosure "... trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential. We are withholding the 56 pages of various drafts of such agreement and other related documents under FOIA exemption 4 and FOIA exemption 5.... Exemption 5 protects interagency and intra-agency predecisional, deliberative materials, the disclosure of which would inhibit the frank and candid exchange of views that is necessary for effective government decision-making.

So, once again, the main issue here is the deliberative process privilege. In theory, it makes some sense to have such an exemption, because you want government employees to be willing to discuss things frankly when shooting around ideas. But here's the problem in both of these cases: these aren't government policies. The whole point is that they're "voluntary agreements" between private parties. And thus, there's no government policy involved, and thus it's difficult to see how the deliberative process privilege could or should possibly apply. Unfortunately, the court ruled otherwise against Soghoian, and I'd imagine that should Gleason appeal this rejection the results would be the same.

Of course, the end result now is that the office of the IP Czar now realizes that it has basically free rein in browbeating companies into collusive positions against upstarts and innovators as pushed for by copyright maximalists -- and it can keep the efforts of the government (i.e., threats of "do this or we'll pass legislation" or "do this or we'll make life difficult for you") totally secret. That should raise serious questions about the appropriateness and legality of nearly all of these so-called "voluntary agreements."